Chapter 2: Elements Of Evidence

Question 1

Purpose/objectives of s6

Answer 1

• providing for facts to be established by the application of logical rules
• providing rules of evidence that recognize the importance of the rights affirmed by the NZ BOR act
• promoting fairness to parties and witnesses
• protecting rights of confidentiality and other important public interests
• avoiding unjustifiable expense and delay
• enhancing access to the law of evidence

Question 2

Facts in issue

Answer 2

• Facts that needs to be proven to succeed with the case.
• Alleged by charging document (SOF) and denied by defendant
• Are proven or disproven by facts relevant to facts in issue
• if the only facts open to proof/disproof are facts in issue, most cases can’t be proven I.e direct witness of the crime

Question 3

*Circumstantial evidence

Answer 3

Evidence used for judge or jury to infer the existence of a fact in issue, therefore indirect proof of fact in issue.

Evidence of circumstances that do not directly prove any fact in issue but allow inferences about the existence of those facts to be drawn

The more circumstantial evidence there is the stronger it is and may be sufficient to prove guilt.

Question 4

General rule

Answer 4

All facts in issue and facts relevant to the issue must be proven by evidence

Question 5

Exceptions to general rule

Answer 5

Judicial notice is taken

The facts are formally admitted (s9)

Question 6

**Judicial notice

Answer 6

The court declaring the fact exists, or will direct the jury to do so even though evidence hadn't been established that the fact exists e.g season over a period of time 
Also s128 ( facts that cannot be reasonably questioned) and s129 (admission of reliable public documents I.e historic, art)
*Cannot be taken for proving age under 16

Question 7

Facts formally admitted

Answer 7

Evidence accepted or proven on the outset by either party under s9, no need to be discussed. Must be agreed upon.

Question 8

Presumptions

Answer 8

When no direct evidence offered or attainable, disputed facts can be inferred from other facts that proved or known. This inference is called a presumption.

Question 9

*Presumption of law I D L F

Answer 9

Inferences drawn by law from particular facts. *May be irrebuttable OR rebuttable, e.g conclusive one of law would be child under 10 unable to be convicted. Rebuttable presumption is all defendants are innocent until proven guilty as some may be guilty despite proof.

Question 10

**Presumption of fact (I D N L F rebutt)

Answer 10

Those that a person naturally and logically draws from a given fact, inferences so ALWAYS rebuttable I.e person holding recently stolen goods has guilty knowledge.

Question 11

*Determining admissibility RFRP

Answer 11

The judge decides on admissibility.
RFRP: RELEVENCE - RELIABILITY - FAIRNESS - PUBLIC INTEREST
Evidence is admissible if it can be legally recieved by court.

Question 12

Relevence

Answer 12

The fundamental condition for admissibility is that the evidence is relevant
Definition: evidence that has a tendency to prove or disprove anything that is of consequence to the determination of proceedings

Question 13

Relevence: value

Answer 13

The degree of probative force or weight of the evidence is a question for the judge or jury in a jury trial.
Relevant evidence MAY be admissible, irrelevant evidence is NOT admissible

Question 14

Reliability

Answer 14

Related often to hearsay and Id evidence, and may be excluded even if relevant as it is unreliable

Question 15

Fairness

Answer 15

S8 - unfair prejudice on proceedings
S8 - needlessly prolong proceedings
- obtained in circumstances that would make its admission against rhe defendant unfair e.g statement obtained through improper methods

Question 16

Unfair prejudicial effect

Answer 16

Admitted only if the probative value outweighs risk of unfair prejudicial effects, or strong enough to justify prolonging proceedings.

Refers to probative weight higher than deserved, or draws jury away from real issues at the trial

Question 17

S9 admission on agreement

Answer 17

Admission of evidence even if not otherwise admissible, where the parties agree. Judge can still decline it.

Question 18

S14 provisional admissibility

Answer 18

The judge may admit evidence l, subject to further evidence being offered which establishes admissibility. If that evidence isn’t forthcoming, the prior evidence may be excluded.

Question 19

S15 hearing in chambers

Answer 19

Governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in proceedings. Can be referred to as preliminary facts.

Jury excluded from the hearing and the evidence given at the time is only admissible if it is inconsistent with the evidence given by that witness subsequently, to prove the inconsistency.

Question 20

*2 prong test for relevence admissibility MP MFI-MPO

Answer 20

Materiality and probativeness
• Materiality asks whether the evidence is offered on a matter of fact at issue in the case (of consequence to the determination of the proceeding – s7(3))
• Probativeness asks whether the evidence has a logical “tendency to prove or disprove” the material proposition on which it is offered (s7(3))